LACHHMI NARAIN Vs. KALYAN

JUDGEMENT

(1.) This is a Civil Second Appeal in a suit for redemption. The main point involved in this appeal is whether the limited right of mortgagee can be acquired by adverse possession. There is an unreported Division Bench case of this Court in Sarwan Lal v. Gangadhar, Second Appeal No. 220 of 1949, decided on the 12th October, 1955, in which it was held that such right can be acquired by adverse possession, but there is another Division Bench case of this Court in Hansia v. Bakhtawarmal, ILR (1958) 8 Raj 126: (AIR 1958 Raj 102), in which it has been held that such right cannot be acquired by adverse possession. When this appeal came up for hearing before one of us sitting as a single Judge, it was referred to a Division Bench, in view of the conflict of opinion between two Division Benches of this Court. Eventually, this Special Bench was constituted for deciding the appeal.

(2.) The facts giving rise to this appeal may be briefly stated thus. On 7th October, 1949, the plaintiffs Laxmi Narain and Sitaram filed a suit for redemption of a shop situated in the town of Reengus, against Mangi Lal and Rameshwar defendants. The case of the plaintiffs in the trial court was that Godha, Lachhmi Narain, Bala Bux and Sita Ram mortgaged the above mentioned shop for Rs. 401/- with Jodh Raj and Jumna Lal on Pos Sudi 15, Sambat 1975, corresponding to the 16th January, 1919, under an unregistered mortgage-deed (Ex. P/l). Thereafter, Rs. 29/-/- were further borrowed by the mortgagor on Mah Badi 5, Sambat 1976, corresponding to the 10th January, 1920. A further sum of Rs. 100/-/- was borrowed on Jeth Badi 5, Sambat 1978, corresponding to the 27th May, 1921, and another document (Ex. P/2), which was also Unregistered, was executed stilting that the mortgage amount due aggregated to Rs. 571/-and that the same shall be paid at the time of the redemption of the shop. In the plaint the dates, of the mortgage are not given, but it is mentioned that the mortgages took place in Sambat 1978 and 1981. The plaintiffs further stated in the plaint that on the 2nd December, 1947, the plaintiffs had filed an application after depositing Rs. 401/-in the Court of Munsif, Sikar, under Section 83 of the Jaipur Transfer of Property Act for redemption of the shop but this application was dismissed on the 31st of January, 1949.

(3.) The defendants contested the suit and pleaded that there was no mortgage in accordance with law as there was, no registered mortgage deed. It was also stated that the date of mortgage mentioned in the plaint was wrong. The defendants also pleaded that they had been in adverse possession from Sambat 1975 and the suit was time barred. It was also pleaded, that the plaintiffs had no right to redeem the property, as all the representatives of the original mortgagees had not been made parties and the suit was bad for non-joinder of parties.